APPEAL from the Circuit Court of Champaign County; the Hon.
JOHN P. SHONKWILER, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Malicious prosecution suit over a "bad check" charge.
Summary judgment for defendant.
At about 1 p.m. on September 5, 1974, Patricia A. Robinson deposited $1,000 in her checking account at the branch bank of the First National Bank of Rantoul located on the Chanute Air Force Base. At approximately 5:30 p.m. on that same date, Robinson purchased merchandise at defendant's Econo-Mart in Rantoul, Illinois, and gave a check for $87.89 drawn on the First National Bank of Rantoul. Robinson's check had her name, address, telephone number, military identification number and driver's license number on the back. (At the time, Robinson was a pregnant, 24-year-old sergeant in the United States Air Force and was stationed at Chanute Field in Rantoul.)
Carlton Jacobs was the executive vice president and general manager of the defendant Econ-O-Corporation and was responsible for the management of Econo-Mart. Because of the size of Robinson's check, Jacobs called the First National Bank of Rantoul on the following morning (September 6) and talked with a person in the bookkeeping department. He was informed that there were not sufficient funds in Robinson's account to cover the check.
Jacobs then called Sergeant Robinson and asked her to come in and pick up the check and give cash for her purchases because the check would not clear. According to Jacobs, she told him to run the check through again because she was going to deposit $1,000 into her account. Robinson denies that any conversation with Jacobs ever took place on September 6, 1974, concerning the check. Jacobs then took the check to the main bank of the First National Bank, but the bank refused to accept the check. The bank stamped the check with the words "Insufficient funds" and returned it to Jacobs. At that point Jacobs went to the office of Associate Judge Wilbur A. Flessner, explained the situation, and signed a verified complaint charging Robinson with deceptive practices in violation of a Rantoul ordinance.
A warrant was issued on the complaint and on the afternoon of September 6, 1974, Patricial Robinson was arrested by a Rantoul police officer and taken before Judge Flessner who informed her of the charge against her, informed her of the amount of bail (namely $400), and gave her a copy of the complaint. The Rantoul police officer then went with her to the main bank of the First National Bank where she cashed a check for $40. While at the bank and in the presence of the police officer, she was advised that she had $1,000 in her account. She posted bond and was released.
Jacobs claims he did not hear of the matter again until Robinson came into his store on November 1, 1974, with cash covering the check. She brought the cash to the store because she believed Judge Flessner's clerk told her that it would be necessary to pay the money. On November 1, the complaint against the plaintiff for deceptive practices was dismissed on the motion of the associate village attorney of Rantoul.
Robinson filed a complaint against the defendant corporation seeking relief on the basis of malicious prosecution, intentional infliction of emotional distress, and false imprisonment. The court below found that there was no genuine issue as to any material fact and granted summary judgment for the defendant.
On appeal, plaintiff first alleges that the trial court erred in granting summary judgment on the malicious prosecution count. The Illinois Supreme Court in Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill.2d 291, 295, 211 N.E.2d 286, 288, held that the essential elements for a malicious prosecution action are:
"(1) the commencement or continuance of an original criminal or civil judicial proceeding, (2) its legal causation by the present defendant against plaintiff who was the defendant in the original proceeding, (3) its bona fide termination in favor of the present plaintiff, (4) the absence of probable cause for such proceeding, (5) the presence of malice, and (6) damages resulting to plaintiff."
The elements which the trial court found to be missing in this case were (4) and (5), the absence of probable ...